A modern treaty for the Columbia River.

• Author: Bode, Thomas G.
• Position: ARTICLES

The Columbia River supports tens of millions of people in seven states and British Columbia through power generation, water supply, fishing, flood control, transportation, and other ecosystem services. Yet the river faces a number of environmental problems that negatively impact those same people. Salmon populations have collapsed, taking with them the commercial fisheries and depressing coastal communities. Salmon conservation efforts cost hundreds of millions of dollars each year. In Canada, reservoirs flood hundreds of square miles of land, causing mudflats and dust storms and transforming beautiful valleys into muddy wastelands. And everywhere on the river and its tributaries, human development has polluted water, destroyed habitat, and degraded ecosystems. Both the United States and Canada have domestic programs to slow or reverse these environmental problems, but the Columbia River Treaty is a large obstacle to these efforts. By the terms of the treaty, 15.5 million acre feet of storage--the majority of storage on the river--must be allocated only to maximize power generation and prevent floods, and cannot be allocated for environmental reasons.

A new treaty for the Columbia River should be negotiated, one that includes an ecosystem function as a primary purpose of river governance. This ecosystem function should chiefly be a provision requiring environmental flows, which are a practical means for addressing environmental issues within the scope of existing international governance. The international law principle of equitable and reasonable use is the framework that should be used to resolve water allocation conflicts among the purposes identified in the treaty and the sharing of benefits with Canada. This new treaty will address the river's serious environmental issues and ensure it continues to benefit the people dependent on it.

1. INTRODUCTION 83 II. THE RIVER AND THE TREATY 84 A. The Columbia River and its Uses 84 B. The Columbia River Treaty 84 C. River Basin Environmental Problems 85 III. PROBLEMS IN THE CURRENT MANAGEMENT OF THE COLUMBIA RIVER BASIN 88 A. Legal Principles Support a New Treaty 89 B. The CUITent Treaty is Not Consistent with Sustainability 92 1. In the United States 92 2. In Canada 95 C. The Treaty's Value Declines Significantly After the Expiration of Terms in 2024 96 IV. A LEGAL FRAMEWORK OF WATER LAw 99 A. Discredited Principles: Absolute Territorial Integrity and Sovereignty 100 B. The Dominant Principle: Equitable and Reasonable Utilization 101 C. The Procedural Component of Equitable and Reasonable Use 104 D. The Duty to Prevent Harm 106 E. The Emerging Principle of Ecosystem Protection 106 1. The Extent of the Obligation Under Customary Intemational Law 107 2. The Substance of the Obligation of Ecosystem Protection 108 V. ANEWTREATY 110 A. Disagreement over an Ecosystem Function 111 B. Equitable Distribution of Benefits 112 VI. A MODERN COLUMBIA RIVER TREATY 115 A. An Ecosystem Function Should be Included in a Modernized Treaty 115 1. An Environmental Flow Requirement Should be the Core of the Ecosystem Function 116 2. Salmon Conservation Should Remain a Concem Primarily of the United States 119 B. The Primary Purposes of the Treaty Should Be Balanced Under the Equitable and Reasonable Use Framework 119 1. Flood Protection Must Be Maintained 120 2. Altemative Uses May Require Removal of Some Dams 121 3. Indigenous Practices Justify Use Decisions 122 4. Canadian Entitlement Should Be Eqwtable in Light of all Relevant Factors 122 VII. CONCLUSION 124 I. INTRODUCTION

   The waters of the Columbia River are intertwined with the human communities that have grown up throughout the Pacific Northwest. People rely on the river for uses and benefits that support their communities and enrich their lives. Thus, the environmental challenges that face the river involve the people around the river as well. These environmental challenges include the loss of salmon runs, loss of valuable land in Canada, ecosystem degradation, and destructive floods. Canada and the United States have implemented domestic programs to address these problems. Although the Columbia River Treaty provides for international coordination of river operations, flooding is the only environmental issue that may be addressed within its legal structure. This limitation impairs the ability of Canada and the United States to address the international component of other environmental problems.

   Fortunately, the operation of the treaty will significantly change in 2024, opening the door for the parties to negotiate a new treaty. (1) This Article suggests that the new treaty should include an ecosystem function that will require the international governance of the river to consider environmental factors. The analysis proceeds as follows. Part II provides the factual context in which these issues take place: the nature of the Columbia Basin, the environmental problems it faces, and the operation of the current Columbia River Treaty. Part III highlights the essential environmental issues in the basin and places those issues in a larger legal context of sustainable development. It also analyzes the change that occurs in 2024 that will likely lead the parties to negotiate a new treaty. Part IV looks at the international legal framework of water law that has developed over the past decades. The principle of equitable and reasonable use is the dominant rule of international water law and is appropriate for application to the Columbia River. This part also looks at the principle of environmental flows, which is a legal mechanism used to address international environmental issues. Part V is a political analysis of the parties' pre-negotiation documents that signal their positions regarding a new treaty. Part VI is a prescription for a modern Columbia River Treaty. A modern treaty should include an ecosystem function that allows environmental issues to be part of international governance decisions. This ecosystem function should be primarily limited, however, to a requirement that environmental flows be provided. Water allocation between the three primary purposes of a modern treaty should be resolved by referral to the equitable and reasonable use framework, which will also provide guidance on how to fairly share the benefits that result for the coordinated use of the river.

2. THE RIVER AND THE TREATY

   1. The Columbia River and its Uses

      The Columbia River begins in the Canadian Rocky Mountains and drains an area the size of France (seven states and one Canadian province) on its way to the ocean. (2) It is the fourth largest river by volume in North America. (3) The Columbia Basin has been home to native people for ten thousand years, who benefitted from its tremendous runs of salmon, thought to be the largest in the world. (4) The arrival of Europeans changed that, and now the basin is home also for tens of millions of Americans and Canadians in addition to the tribes that remain. Thousands of dams have been built on the river and its tributaries in the last 150 years, yielding immense benefits: control of spring floods; hydroelectric power generation; water for agricultural, municipal, and industrial purposes; and recreation. (5) These benefits came at a cost: the historic runs of salmon crashed, many went extinct, and the wild river that galloped to the sea turned into a series of slack water pools extending for miles behind dams. (6) It is said that the Columbia River "died and was reborn as money."(7)

   2. The Columbia River Treaty

      In 1948, an overnight spring flood completely destroyed the town of Vanport, Oregon. (8) All but a few of the residents evacuated to safety, but when the waters receded, over eighteen thousand people no longer had a home. (9) This flood was an impetus for the Columbia River Treaty, negotiated between the United States and Canada in the 1950s, signed in 1961, and entered into force in 1964. (10) Geographically, the best sites for building dams with sufficient storage to prevent floods like the one that destroyed Vanport were located in Canada. (11) Development along the Columbia in Canada was sparse, however, and Canada lacked a reason to engage in the large-scale construction necessary to tame the spring freshet. (12)

      The treaty solved this problem. To fulfill the first purpose of the treaty, reducing the risk of floods, Canada was obligated to build and operate three large dams to control the risk of downstream flooding. (13) In exchange for this benefit, the United States pledged a payment of $64 million. (14) The second purpose of the treaty was to maximize hydroelectric generation by controlling reservoir levels in a way that made best use of the high-capacity hydroelectric plants located in the United States. (15) In exchange, the treaty created the "Canadian Entitlement": Canada was entitled to half of the downstream power generated. (16) To coordinate both of these purposes, the treaty established a number of institutions that used forecast data to make water operations plans that control the flow of water from Canadian reservoirs to maximize downstream power production while ensuring protection from floods. (17) The treaty does not permit water allocation decisions to be made on any basis other than flood prevention or power generation--including environmental reasons. (18)

   3. River Basin Environmental Problems

      Development of the Columbia Basin, including the construction of dams contemplated by the Columbia River Treaty, caused a number of environmental problems in the basin. (19) The treaty addresses only one environmental problem: the possibility for destructive floods. (20) The treaty has worked to prevent catastrophic floods in the past 60 years--in 2012 alone, it is estimated that the treaty's flood protection prevented $2 billion in damage in the United States. (21)

      The treaty is an accomplice to another major environmental problem: the demise of salmon runs. (22) Historic salmon...